UI-2024-005847

• Status of case: Unreported
• Hearing date: 9 Jun 2025
• Promulgation date: 21 Aug 2025
• Publication date: 9 Sep 2025
• Last updated on: 9 Sep 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005847

First-tier Tribunal No: EU/54993/2023
LE/01789/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 August 2025

Before

UPPER TRIBUNAL JUDGE LODATO
UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MH
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Tan, Senior Presenting Officer
For the Respondent: Mr Holmes, counsel instructed by My UK Visas

Heard at Manchester Civil Justice Centre on 9 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent, MH, and any member of her family, are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent, and any member of her family. Failure to comply with this order could amount to a contempt of court.


DECISION AND REASONS

Introduction
1. The Secretary of State appeals against the First-tier Tribunal decision to allow the underlying appeal on the application of the rules which implemented the EU Settlement Scheme as they relate to applicants asserting a derivative right of residence to preserve the ability of an EU national child to enjoy their free movement rights. We are asked to set aside that decision on two fundamental and interconnected points of principle, one of which is procedural in scope while the other is involves substantive rights under the European legal framework. In short, the Secretary of State invites us to overturn a decision, which was founded on a concession, because, it is argued, the judge was led astray into demonstrable and hard-edged legal error.
2. We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because MH is a complainant in an investigation into a serious sexual offence and therefore attracts an automatic anonymity order by operation of ss.1-2 of the Sexual Offences (Amendment) Act 1992. As these proceedings encompass discussion of that investigation, we are bound by statute to order her anonymity. There is no question of balancing the fundamental principle of open justice because Parliament has decided that an anonymity order is required in these circumstances.
3. To avoid confusion, and for the remainder of this decision, we will refer to the parties as they were before the First-tier Tribunal.
4. This is a decision to which both members of the panel have contributed.
Background
5. The procedural background to the appeal is of some importance. Below, we set out a chronology of the key events:
14 July 2005: TV, the appellant’s second of three children, was born. He is an Italian citizen.
18 March 2009: TV’s father died.
16 June 2014: the appellant entered the UK and has resided here since.
September 2014: TV entered the UK education system.
9 July 2016 – 8 January 2019 & 14 August 2019 – 14 February 2022: the appellant had leave to remain as a parent granted under Appendix FM of the Immigration Rules.
2 July 2017: the appellant’s third child is born; he is a British citizen.
1 August 2018: the appellant married AJ, a British citizen.
6 April 2022: TV was granted settled status under Appendix EU of the Immigration Rules.
12 June 2023: the certificate of application confirmed that the appellant’s application under Appendix EU was received by the respondent.
3 August 2023: the respondent refused the application. In the refusal decision, it was noted that the application had been made on the basis of a person with a derivative right to reside. It was decided that the applicant did not meet the eligibility criteria because her residence status as person with a derivative right ended on 9 July 2016 when she was granted leave to remain under Appendix FM. The reasoning to support this conclusion was set out in the following terms:
The reason for this is that, at the specified date and during the period set out above, you did not satisfy sub-paragraph (c)(iii) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU.
While EU law applied in the UK, a primary carer of an EEA citizen child could only have a derivative right to reside in the UK if denying that right to reside would compel the EEA citizen child to leave the UK.
Sub-paragraph (c)(iii) of the definition of a ‘person with a derivative right to reside’ therefore requires that, throughout the continuous qualifying period which began before the specified date in which you rely on being a ‘person with a derivative right to reside’, the Ibrahim and Teixeira child would in practice be unable to continue to be educated in the UK if you in fact left the UK for an indefinite period.
In accordance with the Court of Appeal judgment in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (paragraphs 47-52), the decision-maker has to consider whether, in practice, the child would be unable to continue to be educated in the UK if the applicant was in fact required to leave the UK for an indefinite period. This is a fact-specific enquiry and is not to be based on a hypothetical or counterfactual assumption.
It is not accepted that you satisfied sub-paragraph (c)(iii) of the definition because from the information and evidence provided or otherwise available, it is considered that [TV] would not have been in practice be compelled to leave the UK if you were required to leave the UK for an indefinite period. This is because Home Office records show that you were granted leave to remain in the UK under Appendix FM of the Immigration Rules on 09 July 2016 which expired on 08 January 2019 and on 14 August 2019 which expired on 14 February 2022 after 11pm on 31 December 2020.
Appeal to the First-tier Tribunal
6. The appellant appealed against the refusal of the claim. The appeal was heard by the judge on 1 November 2024. This hearing followed two previous case management review hearings in which the same judge issued directions to clarify the issues to be resolved in the appeal. To that end, the respondent provided a series of respondent reviews.
7. There were developments which preceded the hearing which occasioned a significant shift in the respondent’s position. We set out below the judge’s summary of these events and the impact they had on the ultimate decision to allow the appeal. The judge said this between [5] and [11]:
Preliminary issues
[5] There is a lengthy procedural history to this case set out in directions I issued at two earlier hearings on 7 June 2024 and 20 August 2024. Given the complexity of the issues and the preparation completed, I reserved the case to myself on each occasion. I will not repeat the background here.
[6] On the morning of this hearing, Mr Holmes requested to address me in the presence of Mr Hardy only. This took place in the hearing room and was video recorded in the usual way. Mr Holmes informed me that the appellant alleges she was raped by her husband on 19 October 2024 and the incident had been reported to police. The appellant had presented as distressed to him that morning. Mr Holmes was instructed that the appellant had made some attempts to disclose the matter to her immigration solicitor in advance but could not speak to the fee earner and did not feel comfortable leaving information with a receptionist. Mr Holmes sought to rely on evidence of the taking of a forensic sample involving the police and of text or WhatsApp messages between the appellant and variously a police officer, a domestic violence worker and her husband. He also applied for the Tribunal to hear part of the appellant’s oral evidence in private and for this issue not to be raised in the presence of T, who was also due to give evidence but is unaware of this incident. I was invited to treat the appellant as a vulnerable witness for reason of the information disclosed and due to the appellant’s mother being terminally ill in Albania. Time was provided for the material to be uploaded and considered by Mr Hardy and the Tribunal, and for further instructions to be taken by the representatives. I invited the parties to consider the effect, if any, of the matters raised on the respondent’s position in her reviews that the appellant could not succeed in her appeal, amongst other reasons, because T could remain to be looked after by the appellant’s husband in the event that she had to leave the UK indefinitely.
[7] When the matter was called on again, Mr Holmes informed me that the new evidence had been uploaded and the parties were ready to proceed. I was told there had been discussion over the issues and necessity for oral evidence. The matter was then reconvened in the appellant’s presence and documents checked. I agreed to admit the new evidence uploaded that morning in the interests of justice given their importance to the issues in the case and there being no objection raised.
Issues in dispute
[8] Following discussion of the issues, Mr Hardy confirmed that the respondent was no longer contending that T, in practice, would be able to remain in the UK if the appellant left for an indefinite period in the sense that the appellant’s husband could care for him. There was also no issue that T was self-sufficient for the relevant period in the terms set out within the rules.
[9] It was agreed that the only live issue for the Tribunal to determine was therefore whether the appellant’s previous grants of leave under Appendix FM meant that she was not someone with a derivative right to reside, having regard to Velaj v SSHD [2022] EWCA Civ 767 and Akinsanya & Anor, R (On the Application Of) v SSHD [2024] EWHC 469 (Admin) because, the respondent argued, she would not have had to leave the UK if unsuccessful with this application. It was agreed that no oral evidence would be needed, and the matter could be dealt with on submissions. I raised with Mr Hardy that I would require submissions on the case of Maisiri (EUSS, Zambrano, ‘Realistic Prospect’ policy) [2024] UKUT 00235, a decision which had followed on from Akinsanya. Mr Hardy asked for time to consider the case and to take instructions, which was granted.
[10] On return to the hearing, Mr Hardy indicated that the respondent conceded that the appellant does in fact meet the relevant rules under Appendix EU. I asked whether the respondent therefore intended to withdraw her decision, and he replied that it would be quicker for me to determine the matter than for a withdrawal and new decision to be taken.
FINDINGS
[11] As there are no disputed issues for the Tribunal to determine, it is not necessary for me to make findings, other than to state that the appeal succeeds with reference to Appendix EU.
NOTICE OF DECISION
The appeal is allowed.
Appeal to the Upper Tribunal
8. The respondent applied for permission to challenge the lawfulness of the decision on a single ground of appeal, namely, that the judge had misapplied the requirements of the EU Settlement Scheme when seen against the reported decisions of the European Court of Justice and the Court of Appeal. It was argued that the judge did not explain how the appellant met the requirement to have had a derivative right to reside at 11pm on the specified date, 31 December 2020, nor for the required continuous qualifying period. A foundation of this argument was that the appellant had a different form of leave to remain with the grants made under Appendix FM in 2016 and 2019. For these reasons, it was suggested that the judge was wrong to have acted on the respondent’s concession at the hearing.
9. On 27 February 2025, Upper Tribunal Judge Blundell granted permission for the grounds to be argued. The following observations were made in granting permission:
The Secretary of State’s grounds of appeal raise an important and arguable point of law. In circumstances in which it was expressly conceded by the Presenting Officer that the Immigration Rules were met, it might be thought (as it was by Judge Saffer in refusing permission at first instance) that the judge cannot have erred in law, or that the respondent cannot be heard to assert such an error. Here, however, the respondent submits that the judge was required to consider the correctness of the concession by reference to the plain requirements of the Immigration Rules. The respondent submits that any such consideration on the part of the judge would have established that the concession was improperly made because the appellant held leave under Appendix FM between 2016 and 2022 and was not a person with a Zambrano right to reside at the time of the UK’s withdrawal from the EU.
Whilst proceedings before the IAC are undoubtedly adversarial (see, for example, Hima v SSHD [2024] EWCA Civ 680, there is support for the contention that a judge is not bound to accept a concession on a question of law: Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514, HL. Whether the concession in this case falls into that category, and whether the respondent should be entitled to withdraw it on appeal (as to which AK (Sierra Leone) v SSHD [2016] EWCA Civ 999; [2017] Imm AR 319 is evidently pertinent) are matters which must now be considered by the Upper Tribunal.
10. At the error of law hearing, we expressed our concern that both parties had served their written arguments late and in breach of directions. The lateness of these written submissions did not assist us in our timely preparation for the hearing. We heard detailed and helpful oral submissions from Mr Tan and Mr Holmes for which we extend our gratitude. We address any submissions of significance in the discussion section below.
Discussion
11. There are two fundamental questions to be addressed in this appeal. The first is the correct approach in law to deciding whether an appellant such as MH qualifies for a derivative right of residence under the EUSS. The answer to this question will have a bearing on the second question: should we permit the respondent to withdraw the concession which was made at the First-tier Tribunal hearing which resulted in the appeal being allowed.
The derivative right of residence under the EUSS
The Law
12. At the hearing, it was agreed between the parties that the version of the Immigration Rules which fell to be considered for this appeal was that which was in force when the application was made, on 12 June 2023. Having reflected further on the position, we are satisfied that the correct version is actually that which was in force when the refusal decision was taken, on 3 August 2023. This accords with the approach taken by the UT panel at [19] of Maisiri (EUSS; Zambrano; 'Realistic Prospect' policy) [2024] UKUT 00235 (IAC). We could discern no material difference between the applicable parts of Appendix EU in the June 2023 version, which was discussed during the hearing, and the August 2023 version.
13. Where relevant, Appendix EU provides as follows:
Purpose
EU1. This Appendix sets out the basis on which an EEA citizen and their family members, and the family members of a qualifying British citizen, will, if they apply under it, be granted indefinite leave to enter or remain or limited leave to enter or remain.
Requirements and procedure
Requirements for indefinite leave to enter or remain other than as a joining family member of a relevant sponsor
EU2. The applicant will be granted indefinite leave to enter (where the application is made outside the UK) or indefinite leave to remain (where the application is made within the UK) where:

• A valid application has been made in accordance with paragraph EU9;
• The applicant meets the eligibility requirements for indefinite leave to enter or remain in accordance with paragraph EU11 or EU12; and
• The application is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.
[…]
Requirements for limited leave to enter or remain other than as a joining family member of a relevant sponsor
EU3. The applicant will be granted five years’ limited leave to enter (where the application is made outside the UK) or five years’ limited leave to remain (where the application is made within the UK) where:

• A valid application has been made in accordance with paragraph EU9;
• The applicant does not meet the eligibility requirements for indefinite leave to enter or remain in accordance with paragraph EU11 or EU12, but meets the eligibility requirements for limited leave to enter or remain in accordance with paragraph EU14; and
• The application is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.
[…]
EU6. A valid application made under this Appendix which does not meet the requirements for indefinite leave to enter or remain or limited leave to enter or remain will be refused.
EU7. (1) Annex 1 sets out definitions which apply to this Appendix. […]
[…]
Eligibility for indefinite leave to enter or remain
Persons eligible for indefinite leave to enter or remain as a relevant EEA citizen or their family member, or as a person with a derivative right to reside or with a Zambrano right to reside
EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, one of conditions 1 to 7 set out in the following table is met:
[…]

3. (a) The applicant:
(i) is a relevant EEA citizen; or
(ii) is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen; or
(iii) is (or, as the case may be, for the relevant period was) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) is a person with a derivative right to reside; or
(v) is a person with a Zambrano right to reside; or
(vi) is a person who had a derivative or Zambrano right to reside; and
(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred in respect of the applicant
[…]
Eligibility for limited leave to enter or remain
Persons eligible for limited leave to enter or remain as a relevant EEA citizen or their family member, as a person with a derivative right to reside or with a Zambrano right to reside or as a family member of a qualifying British citizen
EU14. The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, condition 1 or 2 set out in the following table is met:

1. (a) The applicant is:
(i) a relevant EEA citizen; or
(ii) a family member of a relevant EEA citizen; or
(iii) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) a person with a derivative right to reside; or
(v) a person with a Zambrano right to reside; and
(b) The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years; and
(c) Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen
[…]
14. A “person with a derivative right to reside” is defined in the following terms:
a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been) or (as the case may be) for the relevant period they were:
(a) resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:
(i) they are not an exempt person; and
(ii) they are the primary carer of an EEA citizen (in accordance with sub -paragraph (a)(i) of that entry in this table and, where they are also a British citizen, the EEA citizen falls within sub -paragraphs (c) and (d) of the entry for ‘relevant naturalised British citizen’ in this table); and
(iii) the EEA citizen is under the age of 18 years and resides in the UK as a self -sufficient person; and
(iv) the EEA citizen would in practice be unable to remain in the UK if the person in fact left the UK for an indefinite period; and
(v) they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect; or
(b) resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:
(i) they are not an exempt person; and
(ii) they are in education in the UK; and
(iii) any of the person’s parents (“PP”) is an EEA citizen (in accordance with sub -paragraph (a)(i) of that entry in this table and, where they are also a British citizen, PP falls within sub -paragraphs (c) and (d) of the entry for ‘relevant naturalised British citizen’ in this table) who resides or has resided in the UK; and
(iv) both the person and PP reside or have resided in the UK at the same time and during such a period of residence PP has been a worker or self - employed person in the UK; and
(v) they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect; or
(c) resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:
(i) they are not an exempt person; and
(ii) they are the primary carer of a person who meets the requirements of sub -paragraph (b) above (“PPP”); and
(iii) PPP would in practice be unable to continue to be educated in the UK if the person in fact left the UK for an indefinite period; and
(iv) they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect; or
(d) resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:
(i) they are not an exempt person; and
(ii) they are under the age of 18 years (unless they were previously granted limited leave to enter or remain under paragraph EU3 of this Appendix as a person with a derivative right to reside and were under 18 at the date of application for that leave); and
(iii) their primary carer meets the requirements of sub -paragraph (a) or (c) above; and
(iv) the primary carer would in practice be prevented from residing in the UK if the person in fact left the UK for an indefinite period; and
(v) they do not have leave to enter or remain in the UK, unless this:
(aa) was granted under this Appendix; or
(bb) is in effect by virtue of section 3C of the Immigration Act 1971; or
(cc) is leave to enter granted by virtue of having arrived in the UK with an entry clearance in the form of an EU Settlement Scheme Family Permit granted under Appendix EU (Family Permit) to these Rules on the basis they met sub -paragraph (a)(ii) of the definition of ‘specified EEA family permit case’ in Annex 1 to that Appendix; and
(vi) they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect
in addition:
(a) ‘relevant period’ means here the continuous qualifying period in which the person relies on meeting this definition; and
(b) unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case, the relevant period must have been continuing at 2300 GMT on 31 December 2020; and
(c) where the role of primary carer is shared with another person in accordance with sub -paragraph (b)(ii) of the entry for ‘primary carer’ in this table, the reference to ‘the person’ in sub -paragraphs (a)(iv) and (c)(iii) above is to be read as ‘both primary carers’; and
(d) ‘self-sufficient person’ means a person with sufficient resources not to become a burden on the social assistance system of the UK, regardless of whether they hold comprehensive sickness insurance cover in the UK; and
(e) ‘education in the UK’ excludes nursery education but does not exclude education received before the compulsory school age where that education is equivalent to the education received at or after the compulsory school age
[Emboldening and underlining in original]
15. It was agreed between the parties that by the time of the substantive hearing category (a) above applied to the appellant’s circumstances. It is significant that category (d) includes the criterion, absent in categories (a) and (b), that the applicant does not have another form of leave to enter or remain. This criterion is expressed in identical language to that which is to be seen at (a)(iv) of the definition of “person with a Zambrano right to reside”. This latter definition was the part of the rules which gave rise to the Akinsanya line of authorities which culminated in R (on the application of Akinsanya and Aning-Adjei) v SSHD [2024] EWHC 469 (Admin). The position is now tolerably clear that the express requirement in the rules means that a Zambrano carer must not have another form of leave to qualify for status under Appendix EU. This is important because the absence of any likewise criterion in the part of the definition section with which we are concerned strongly suggests that it was omitted intentionally. Mr Tan recognised these distinctions and departed from any suggestion in the grounds of appeal that the existence of previous grants of leave to the appellant under Appendix FM functioned, without more, as a reason why the application was incapable of succeeding. We therefore agree with Mr Holmes’ submission that if the draftsperson had been minded to exclude people like the appellant as a person with a derivative right to reside exclusively because they held different forms of leave, this could have been easily achieved, as it had in other parts of the rules. The fact that there is not such an exclusion in categories (a) and (b) can only mean that other forms of leave were not intended to shut out those, like the appellant, who had, and continued to have at the specified date, a different form of leave. During the hearing, Mr Tan pivoted and relied on the grants of leave under Appendix FM instead as significant factors which ought to have been considered in assessing whether the compulsion test was satisfied. It is to this test which we now turn.
16. The ‘compulsion test’ referred to above is shorthand for the requirement that a derivative right to reside can only take hold when the primary EU national would be compelled to leave the EU, and thereby relinquish their treaty rights to reside, if their primary third country national (‘TCN’) carer left the territory for an indefinite period. This principle, taken from a long line of ECJ and Court of Appeal authorities, is reflected at (a)(iv) of the definition of “person with a derivative right to reside” and bears repetition: “the EEA citizen would in practice be unable to remain in the UK if the person in fact left the UK for an indefinite period”. In considering what this part of the definition entails, we are assisted by the judgments of the Supreme Court in Patel & Shah v SSHD [2020] 1 WLR 228 and the Court of Appeal in Velaj v SSHD [2023] QB 271.
17. In Patel & Shah, Shah’s case is of relevance for present purposes because the central issue to be decided was whether Mr Shah, a TCN father of a British citizen child, was entitled to the Zambrano form of a derivative right to reside. Mrs Shah, the child’s mother and Mr Shah’s wife, was also a British citizen. The child and his parents had a shared family life in their family home. Mr Shah was found by the First-tier Tribunal to be his son’s primary carer as Mrs Shah worked full-time outside the home. At [28] of the judgment of Lady Arden JSC, the importance of the fact-finding exercise in the First-tier Tribunal was emphasised in tandem with the fact that the Secretary of State had not challenged the proposition that Mr Shah acted as the primary carer for the child, nor that Mrs Shah would be minded to leave the UK should her husband be required to depart. Lady Arden discussed the underlying and principled foundation for the compulsion test at [22]:
[22] What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN, with whom the Union citizen has a relationship of dependency, is removed. As the CJEU held in O v Maahanmuuttovirasto (Joined Cases C-356/11and C-357/11) [2013] Fam 203, it is the role of the national court to determine whether the removal of the TCN carer would actually cause the Union citizen to leave the Union. […]
18. At [24]-[25], the analysis of two decisions of the European Court of Justice were relied upon to inform the judicial approach to be taken to the compulsion test in the UK:
[24] It is not necessary to cite further passages from KA. It will be observed that in KA the CJEU drew on its earlier decision in Chavez-Vilchez [2018] QB 103. That case concerned several TCN mothers, whose children were Dutch and who claimed a derivative right to reside in The Netherlands. The Dutch Government rejected these claims on the basis that the fathers of the children were also Dutch. Some of the fathers had a degree of involvement in their child’s upbringing but they lived apart from the child’s mother and were not the primary carer. The CJEU held that it was not a sufficient answer to the mother’s claim for residence that the father could in theory become the child’s carer. The Dutch court had to assess whether the child would be compelled to leave the Union, and in making that decision the national court had to take into account all the circumstances, including the best interests of the child. The CJEU held:
“70. In this case, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the European Union and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by article 20FEU if the child’s third-country national parent were to be refused a right of residence in the member state concerned, it is important to determine, in each case, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of that Charter.
“71. For the purposes of such an assessment, the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium.”
[25] The final sentence of para 71 of the CJEU’s judgment in Chavez-Vilchez identifies the matters which the national court must take into account when deciding whether the requirement for compulsion is fulfilled. Chavez-Vilchez has to be read in the light of the particular facts before the CJEU, which were of separated parents where the Union citizen parent was not the primary carer and where the national court might well conclude that, having regard to the child’s best interests and the extent of their ties to their mother, the relevant relationship of dependency on the mother was made out. There is no direct analogy with a case, such as the Shah appeal, where the family is living together. In that situation, where the TCN is the primary carer and the parent with whom the child has the relevant relationship of dependency and the Union parent will stay with them so as to keep the family together, it will be in the child’s best interests to remain with both parents. Because Mr Shah was the primary carer, the need for a relationship of dependency with the TCN was fulfilled. Moreover, the quality of that relationship is under the jurisprudence of the CJEU a relevant factor in determining whether the child is compelled to leave the jurisdiction (see Chavez-Vilchez [2018] QB 103, para 71; KA [2018] 3 CMLR 28, para 70).
19. The overall test for compulsion was set out at [30]:
[30] […] The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court is required to take account, “in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium” (Chavez- Vilchez [2018] QB 103, para 71). The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion.
20. The analytical approach to be taken to the compulsion test was further analysed by the Court of Appeal in Velaj in the context of the derivative right of residence as it arose under the pre-EUSS legal scheme, regulation 16(5) of the Immigration (European Economic Area) Regulations 2016. It was noted, at [33], that the language used to express the compulsion test reached across the different forms of derivative rights:
[33] The history which I have set out above illustrates that the premise upon which the impact on the British citizen dependant’s rights is considered is, and always has been, expressed in exactly the same terms for a Zambrano carer as it is for a Chen or Ibrahim/Teixeira carer, and that this was a matter of deliberate choice. The interpretation must therefore be the same irrespective of which of these derivative rights is being claimed. Moreover, the phrase must bear the same meaning irrespective of whether the applicant for derivative rights is a sole primary carer, or shares caring responsibilities equally with another person.
21. Like the Supreme Court in Patel & Shah, Andrews LJ rejected, at [47]-[52], the proposition that the compulsion test should be assessed with reference to hypothetical (and counterfactual) assumptions and spoke of the temporal vantage point a decision maker should adopt when asking this question as well as the qualitatively factual nature of such an inquiry:
[47] […] The focus is on whether the British citizen dependant would be “unable” to remain in the UK “if” something happens–i e on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision-maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. Given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.
[48] “If the person left the UK for an indefinite period” could either mean “in the event that the person [in fact] left the UK for an indefinite period” or “on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)”. The former seems to me to be the more natural interpretation, and carries with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. At the risk of stating the obvious, a purely hypothetical event could have no impact, in practice, on the ability of the child or other British citizen dependant to remain in the UK.
[49] It is clear from Chavez-Vilchez [2018] QB 103 and Patel [2020] 1 WLR 228 that the question whether the dependent EU citizen would be “unable to reside in the UK” depends on a fact-specific inquiry. I agree with the Upper Tribunal that it requires a nuanced analysis of inability, and not a simple analysis of a hypothetical question, and that must mean that the decision-maker is looking at what is likely to happen in reality. As they put it at para 48 of the determination, “the key issue of inability to reside in the United Kingdom requires detailed consideration and a causal link with the departure of both carers”.
[50] […] Requiring the decision-maker to assume that both primary carers will leave the UK when one of them will undoubtedly stay behind also precludes the type of nuanced inquiry that was envisaged in Chavez-Vilchez […]
[51] I am fortified in my view of the correct construction by the phrase used in the predecessor provision, regulation 15A(4A): “if P were required to leave” the UK which seems to me to be even clearer. Assuming that “required to leave” is given a wider meaning than “legally compelled” in line with Zambrano [2012] QB 265 itself (as I consider it must be), that means “in the event that P will be forced to leave the UK”. The decision-maker is looking at the likely impact upon the child of the primary carer being forced by law or by economic pressure to leave the UK. It presupposes that on the facts of the specific case, this is a realistic hypothesis.
[52] The meaning of the phrase does not change when there are two primary carers. In the previous Regulations the decision-maker was required to consider the question whether the child would be unable to remain in the UK “on the basis that both P and the person with whom care responsibilities are shared would be required to leave the United Kingdom”. “On the basis that” cannot be interpreted as requiring a counterfactual assumption. It must mean that the decision-maker is required to look at matters on a factual basis, i e from the perspective of what would happen to the child if in fact, in the circumstances of that specific case, both primary carers would leave the UK. The words read into regulation 16(5)(c) by regulation 16(9) make no material difference to the approach to be taken.
22. Both the Supreme Court in Patel and Shah ([28]) and the Court of Appeal in Velaj ([49]) stressed the importance of the fact-finding exercise in the tribunal proceedings. That exercise, where appropriate, may take into account evidence post-dating the refusal decision.
23. While, as in the present appeal, the Court of Appeal judgment in Akinsanya did not apply, Andrews LJ considered the impact which another form of limited leave to remain may have on any assessment of the compulsion test. The following observations were made at [68]-[69]:
[68] […] the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.
[69] I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks “what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?” they will not be positing a completely unrealistic scenario. […]
Analysis and Conclusions
24. The first point to be made is that there are no reported authorities which have assessed how the compulsion test should be approached under the EUSS for those who claim to have this type of derivative right of residence. However, while there are distinctions with the approach taken under the pre-EUSS legal scheme, we are not in entirely virgin legal territory notwithstanding the need for a decision-maker to adjust their frame of reference to look to events as they stood in the past during the continuous qualifying period, the specified date and when the application was made. In broad terms, the position of this appellant shares much in common with the applicants in the ECJ Chavez-Vilchez litigation where the TCN parents of EU citizens were separated from their former EU national partners, who were also parents and potential primary carers for the relevant children. However, here, the separation came after the specified date. For the reasons which follow, we are satisfied that it would be an overly blunt approach, and out of step with the nuanced and fact-sensitive inquiry which is required, to conclude that the judge ought to have disregarded the events which immediately preceded the hearing before him.
25. Mr Holmes invited us to find that we should adopt a wholly retrospective approach in our assessment of the compulsion test because the structure of Appendix EU calls for consideration of defined points, and periods, of time in the past. Mr Tan did not seek to persuade us otherwise. However, it is unnecessary to conclusively settle this point of interpretation in this decision because the parties were agreed that it was open to the judge to consider the developments which unfolded just before the hearing as casting light upon whether the compulsion test was satisfied when the application was made.
26. At [53] of the panel’s decision in Maisiri, well-understood principles about how the Immigration Rules should be interpreted were recited. The natural meaning of the words used in the rules must be considered against the relevant background. With that in mind, we turn to the applicable rules which have been copied above. Firstly, condition 3 of EU11 and condition 1 of EU14 both specify that the eligibility criteria of an applicant for indefinite or limited leave to remain is a person with a derivative right to reside. EU11 and EU14 expressly state that the relevant condition must be met at the date of application and in an application made by the required date. This directs the decision-maker to a state of affairs as it existed at particular points of time in the past. Condition 3(b) of EU11 brings into play a further past period of time in the shape of the requirement that an applicant must have completed the continuous qualifying period of five years in a qualifying capacity.
27. The definition of a person with a derivative right to reside provides: a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been) or (as the case may be) for the relevant period they were […] resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met: […] they are the primary carer of an EEA citizen […] the EEA citizen is under the age of 18 years and resides in the UK as a self -sufficient person; and […] the EEA citizen would in practice be unable to remain in the UK if the person in fact left the UK for an indefinite period.
28. As has been observed in a number of authorities (see most recently, Mustaj v SSHD [2025] EWCA Civ 663), this particular part of the Immigration Rules is extremely difficult to decode. The combination of the eligibility requirements and the definition does not expressly exclude circumstances which come after the application was made. Such developments might reasonably inform the position as it pertained at the time of application in assessing whether the EU national child would be compelled to leave and thereby relinquish their retained EU rights in the future. After all, a decision-maker would always have to address this fundamental question after the application was made and would not be expected to use an analytical guillotine to excise any facts in the intervening period. The circumstances of the present, and what may happen in the future, are not rendered an irrelevance by the Appendix EU legal scheme.
29. We are fortified in this conclusion by what was decided in Maisiri. The primary question to be decided in this appeal was whether the respondent adopted an unlawful policy position in requiring decision-makers to consider whether there was a realistic prospect of a different form of leave being granted should the necessary application be made. The panel interpreted whether Appendix EU permitted such a requirement to be introduced into the decision-making framework. At [95] of his decision, Upper Tribunal Judge Blundell observed that the correct approach was that “the pending appeal against the adverse decision under Appendix EU would be decided on the basis of the actual facts, as and when they are known”. It would be difficult to faithfully adopt such an approach by discounting evidence such as that which emerged shortly before the First-tier Tribunal hearing in the present proceedings.
30. While Mr Holmes argued that Appendix EU converted any consideration of whether a person with a derivative right of residence qualified for status into a purely retrospective exercise, he maintained that it remained open to a judge to consider evidence provided later as illuminating the circumstances as they were during the assessment window. He argued that the serious criminal allegations made against AJ informed any reasonable consideration of whether the EU national child would have been compelled to leave with his mother in the past. In short, subsequent events had revealed that AJ was never an appropriate or suitable candidate for the child to be left with. Support for the lawfulness of such an approach to the evidence was taken from Elais (fairness and extended family members) [2022] UKUT 00300 (IAC), at [52], where a post-specified date marriage was found to lawfully inform the assessment of whether the relationship was durable for the purposes of Appendix EU before 31 December 2020. The judge in the present proceedings was equally entitled to consider the evidence of the serious criminal allegations made against the appellant’s husband as casting light on the circumstances which pertained until the application was made. This coheres with the analytical approach adopted in accordance with Elais. This latter proposition was agreed by Mr Tan during the hearing. It follows that there was no dispute that the evidence which emerged before the hearing was relevant to the decision-making process which was required.
31. The authorities are clear that the compulsion test is an intensely fact-specific exercise. The procedural background and fact-finding exercises which underpinned the authorities of both Patel & Shah and Velaj involved critical evidential developments at the hearings before the First-tier Tribunal and Upper Tribunal and serves to underscore the importance of the judicial fact-finding exercise.
32. The compulsion test is a demanding and high threshold which is not easily reached. However, we are in no doubt that any assessment of this test necessarily involves an evaluative judgement of the facts. On the facts of this case, there was ample scope for the judge to assess the facts as either meeting or falling short of the required threshold. For reasons which will become clear, this is an important conclusion when we turn our minds to the concession which was made at the First-tier Tribunal hearing and whether we should allow it to be withdrawn.
Withdrawal of a concession
The Law
The issues-based approach and overlap with withdrawal of a refusal decision
33. Before turning to the authorities which touch upon the principles to be applied when a judge is asked to permit a concession to be withdrawn, it is important to consider the procedural sea change which has recently unfolded in this jurisdiction.
34. In Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), a Presidential panel emphasised the fundamental importance of the parties’ engagement in a process to define and narrow the issues in dispute. The substantive hearing was treated as an important juncture by which time the parties should have a clear understanding of their respective cases and the principal controversial issues to be resolved by the tribunal. It was made clear that judges are not expected to trawl through the papers to interrogate the positions adopted by the parties, the implication being that the parties in this specialist jurisdiction are to be trusted to know what their cases are and to be aware of the relevant legal principles. An exception to this general approach would be where a judge has overlooked a Robinson-obvious point of law. The final paragraph of the headnote reads: “A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal”. The observations made at [31] and [34] are particularly germane to the facts of the present matter:
[31] The Secretary of State's ground of appeal evidences a misconception that it is sufficient for a party to be silent upon, or not make an express concession as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. In simple terms, this amounts to a judge being required to search for and consider an 'obvious' point, though not so obvious that it was raised by a party at the hearing. The reformed appeal process that now operates in the FtT has been established to ensure that a judge is not required to trawl through the papers in an appeal to identify what issues are to be addressed. The task of the judge is to deal with the issues that the parties have identified. It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which the party's case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties' positions.
[…]
[34] We consider that there exists a duty upon the parties to identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope that it will purchase favour on appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before UTIAC. None of this is to say that a FtT judge is to entirely lack curiosity in relation to an aspect of a case that the judge requires further assistance with or which the judge considers should be examined as part of the evaluation of the case. Where, as here, a point has not been identified by the parties, and nor is it one which has independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time in the context of an appeal to UTIAC.
35. In a further Presidential panel, observations to much the same effect were made in TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023]UKUT 00164 (IAC) where it was emphasised that the procedural machinery of Practice Statement No 1 of 2022 was designed to promote focussed attention on the genuinely disputed issues so as to produce proportionately efficient proceedings.
36. On the day, the judge heard this appeal in the First-tier Tribunal, the Senior President of Tribunal’s Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal was published. It begins with a reassertion of the principles decided in Lata and TC and provides as follows, at [1.3]:
[1.3] The disputed issues represent the parameters, or scope, of the appeal and will operate as the foundation and structure for all judicial decisions. Subject to ‘Robinson obvious’ matters and the need for extra care when litigants in person are involved in proceedings, judges should not be expected to infer issues which have not been clearly identified and articulated by the parties. The Tribunal will not tolerate a rolling consideration of issues and will not permit the issues to evolve at will for procedural advantage.
37. These principles are of particular importance at the substantive hearing of an appeal. A Judge at a substantive hearing can legitimately expect the parties to have a full understanding of their respective legal and factual cases at this stage of a process in which the issues to be determined should have been undergoing a process of crystallisation throughout. Paragraph 11.4 says this about this critical juncture in the process:
[11.3] The outset of the substantive hearing is the final opportunity to refine and further narrow the disputed issues or agree issues or matters that are in dispute. Once settled, the disputed issues define the scope of the appeal hearing and confine the territory to be explored in the evidence, submissions and decision.
38. In circumstances where a wholesale concession results in the appeal succeeding, the tribunal is entitled to place its trust in the respondent that it has fully considered the facts and relevant legal principles before taking a step which results in the disposal of the appeal. There must be a good reason to permit the respondent to resile from a settled position on the merits of an appeal and to choose not to contest it. A judge confronted with such a concession is not required the investigate the basis on which such a position has been adopted and can generally have confidence that the specialist professionals who are appearing on behalf of the Secretary of State have acted with due diligence and taken a well-informed view of the facts and applicable law. This coheres with the issues-based approach and the concomitant duties of the parties as reflected in the recent procedural sea-change in this jurisdiction.
The caselaw on concessions
39. Senior tribunals and courts have, on a number of occasions, considered the principles which fall to be applied when a party seeks to withdraw a concession which had been previously made in the proceedings. Below, we seek to draw out the key substantive and procedural themes which have emerged from those decisions and arrive at our own conclusions about the non-exhaustive factors which should be considered when a tribunal judge is faced with such an application.
40. In Carcabuk & Bla v SSHD 00/TH/01426, the Immigration Appeal Tribunal (Collins J and Judge Ockleton) heard two appeals together with a view to providing authoritative guidance (see [2]) as to the approach which should be adopted when the respondent to an appeal has tacitly or expressly conceded that an appellant was credible about important factual matters. The implications for procedural fairness were stark where an appellant chose not to give oral evidence in reliance on such a concession. For present purposes, important observations were made about the principles at stake, at [11] and [12(4) & (6)] (other observations were made in relation to the procedure to be adopted in such a situation which we will come to later):
[11] It is in our judgment important to identify the precise nature of any so-called concession. If it is of fact (for example that a particular document is genuine or that an event described by the appellant or a witness did occur), the adjudicator should not go behind it. Accordingly, if facts are agreed, the adjudicator should accept whatever is agreed. Equally, if a concession is clearly made by a HOPO that an appellant is telling the truth either generally or on specific matters, the adjudicator may raise with the HOPO his doubts whether the concession is appropriate but, if it is maintained, he should accept it. But there is all the difference in the world between a concession and a failure to challenge. The former will bind the adjudicator, the latter will not. Furthermore, any concession can be withdrawn so that, for example, the case before the Tribunal can be presented in a different way to that before the adjudicator. It is open to a HOPO to withdraw a concession made before an adjudicator before the hearing is concluded, but the appellant must be given a proper opportunity to deal with the new case against him and unless there is good reason for the withdrawal such as the discovery of fresh material we doubt that the adjudicator should permit any adjournment which such withdrawal would be likely to necessitate. […]
[…]
[12(4)] A HOPO may make any concession before an adjudicator. If he does, the adjudicator may ask him to reconsider it if he believes it may be wrong to make it. But the adjudicator must always bear in mind that the appellant may have prepared his case on the basis of the concession and so must ensure, if he persuades the HOPO that he should not make it, that the appellant is not prejudiced. In reality, HOPOs should not make concessions unless sure that they should be making them.
[…]
[12(6)] A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to have made and to withdraw the concession.
41. A senior panel of the Immigration Appeal Tribunal returned to this subject in SSHD v Opacic 01TH00850 where it had been effectively conceded in the tribunal below that all of the elements which tended to establish the necessary requirements for international protection were made out in the two unrelated appeals. The respondent sought to withdraw those concessions in reliance on Carcabuk. At [22], the applications to withdraw the concessions were refused for the following principled reasons:
[22] […] Both Carcabuk & Bla, as we have noted above, concerned concessions about credibility. We see a clear distinction between concessions about matters that form part of the issues before an Adjudicator, such as credibility, questions whether or not a person has been tortured, whether they have been arrested and similar such issues, as being significantly different from a situation where all the elements which entitle an appellant to succeed have been conceded. Mr Gulvin, in our view quite rightly, accepted that the same concession had been made in the appeals before us as in Pantic, and that this amounted to a concession of the appeal in its entirety. There is never any obligation upon the Secretary of State to concede all or any part of an appeal. The point is made at sub paragraph 4 on page 6 of Carcabuk & Bla that the Presenting Officer should not make concessions unless sure that they should be making them. Any concession only of course relates to the particular case in issue, and clearly Mr Wilkie was doing no more in Eantin than conceding that particular appeal. Equally Mrs Heard in the appeals before us was conceding the appeals in both of those cases. Where an appeal has been conceded in its entirety, as in these cases, we do not consider that such a concession can be withdrawn, and we see nothing in Carcabuk & BIa that leads us to any contrary view. It is not in our view a matter that can be cured by a subsequent giving of notice to an appellant that the concession is withdrawn. In our view the effect of a concession where the factual and legal basis of the appeal have been conceded is such as to preclude the Home Office from going back on that concession and seeking to re-open the issues.
42. Next, the Court of Appeal considered the relevant principles in SSHD v Davoodipanah [2004] EWCA Civ 106. In these proceedings, the respondent conceded at first instance that the international protection appeal ought to succeed if the appellant were found to be credible about the key parts of her narrative. Drawing on Carcabuk, Kennedy LJ said this at [22]:
[22] It is clear from the authorities that where a concession has been made before an adjudicator by either party the Immigration Appeal Tribunal can allow the concession to be withdrawn if it considers that there is good reason in all the circumstances to take that course. […] Obviously if there will be prejudice to one of the parties if the withdrawal is allowed that will be relevant and matters such as the nature of the concession and the timing may also be relevant, but it is not essential to demonstrate prejudice before an application to withdraw a concession can be refused. What the tribunal must do is to try to obtain a fair and just result. In the absence of prejudice, if a Presenting Officer has made a concession which appears in retrospect to be a concession which he or she should not have made, then probably justice will require that the Secretary of State be allowed to withdraw that concession before the Immigration Appeal Tribunal. But, as I have said, everything depends on the circumstances, and each case must be considered on its own merits.
43. The analysis of Kennedy LJ in Davoodipanah was the platform used by Goldring LJ to expand upon the principles to be considered in NR (Jamaica) v SSHD [2009] EWCA Civ 856, a case in which there has been a series of shifting and contingent concessions made about discrete issues in a protection appeal. At [12] of his judgment, the following matters were held to be of importance in the assessment of whether a concession should be allowed to be withdrawn:
[12] As Kennedy LJ makes clear, the Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend on the particular circumstances of the case before it. Prejudice to the applicant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted. Bad faith will almost certainly be fatal to an application to withdraw a concession. In the final analysis, what is important is that as a result of the exercise of its discretion the Tribunal is enabled to decide the real areas of dispute on their merits so as to reach a result which is just both to the appellant and the Secretary of State.
44. Much like NR (Jamaica), in CD (Jamaica) v SSHD [2010] EWCA Civ 768, the Court of Appeal considered whether the respondent should have been permitted to withdraw concessions, against the backdrop of several shifts of position, made in the context of a protection appeal brought by a foreign criminal convicted of attempted murder. While the respondent was criticised for its conduct of the proceedings, it was found that an application to withdraw a concession should have succeeded on the facts. Moses LJ referred, at [27]-[28], to the restraint which must be exercised before a decision is taken to reverse a decision of a specialist tribunal not to permit a concession to be withdrawn, even if the senior court might have reached a different view on the application. A decision to refuse to allow a concession to be withdrawn could only succeed if found to be irrational in a public law sense. Moses LJ found the decision to refuse to allow concessions to be withdrawn to be irrational for the reasons he gave at [30]:
[30] Secondly, in my judgment it erred as a matter of law, and not merely as a matter of weight, in failing to have regard to the consequences of refusing the withdrawal of the concession. The consequence would be that, contrary to AB, no consideration would be made as to risk on return or the reasonableness of internal relocation. On the contrary, a man convicted of a very serious crime, where he had been convicted of shooting a man with intent to kill, would be permitted to remain in this country contrary to the clear statutory presumption raised in Section 3 (5) of the Immigration Act 1971. Nowhere in the decision of the tribunal does it seem to me that those consequences are properly identified and weighed. Of course, as I have mentioned, the tribunal did refer to the consequences at paragraph 10 and again at paragraph 14, but what they did not, in my judgment, reflect in their decision was the failure to consider the consequence. The real issues in the case raise the question of protecting the public interest in this country which ex hypothesi would not be protected were this man to remain in this country. That might be inevitable were he to be at risk of a breach of his rights enshrined in Article 2 and Article 3, but in reaching that conclusion it was incumbent upon the tribunal to acknowledge that real public interest.
45. A number of the authorities discussed above were summarised by Jackson LJ in AK (Sierra Leone) v SSHD [2016] EWCA Civ 999. In his survey of the decided cases, he particularly emphasised the observations of Elias LJ in Koori v SSHD [2016] EWCA Civ 552 where he said this at [31] of that judgment:
[31] I would accept that if there had been a considered and lawful decision to deem the seven year rule to be satisfied, the Secretary of State should not be allowed to resile from that decision. An administrative body cannot keep revisiting decisions which affect individual rights: there must be finality, at least unless there is a powerful public interest to the contrary.
46. Jackson LJ went on to refuse to entertain the respondent’s continuing efforts to resile from a concession that all three limbs of the statutory private life exception of s.117C(4) of the 2002 Act. In doing so, he said this at [48]-[49]:
[48] It follows that the concessions made by the Home Office Presenting Officer were such as to determine the entire appeal. The First-tier Tribunal Judge, as he was entitled to do, accepted those concessions. That was the end of the case.
[49] I do not need to go so far as to say that in such circumstances the Secretary of State could never appeal to the Upper Tribunal, but on the facts of this particular appeal, it seems to me quite unjust that the Secretary of State, having conceded on all points, should be entitled to resurrect her case and withdraw the concessions which she had made. As Mr Fortt rightly concedes, the Upper Tribunal gave no good reason for allowing the Secretary of State to take that course.
47. In AM (Iran) v SSHD, Simon LJ found, at [57(5)], that a First-tier Tribunal Judge ought to have inquired as to the foundation for a concession going to the objective risk of persecution on return to Iran which appeared to be out of step with binding country guidance.
48. The authorities indicate that there is likely to be wider scope to permit a concession to be withdrawn if the concession was productive of an error of law. In a different legal context, the House of Lords in Bahamas International v Threadgold 1 W.L.R. 1514 held (at 1525G):
In a case which turns, as this one does, upon the construction to be given to a written document, a court called upon to construe the document in the absence of any claim for rectification cannot be bound by any concession made by any of the parties as to what its language means. This is so even in the court before which the concession is made; a fortiori in the court to which an appeal from the judgment of that court is brought. The reason is that the construction of a written document is a question of law. It is for the judge to decide for himself what the law is, not to accept it from any or even all of the parties to the suit; having so decided it is his duty to apply it to the facts of the cases. He would be acting contrary to his judicial oath if he were to determine the case by applying what the parties conceived to be the law, if in his own opinion it was erroneous.
49. The Supreme Court applied this principle in a contracts appeal: Armstead v Royal & Sun Alliance Insurance Co Ltd [2025] AC 406. At [46] of their judgment, Lord Leggatt and Lord Burrows JJSC held: “[i]t would be inappropriate to decide this appeal in reliance on a concession that we did not think was legally correct”.
50. Returning to the immigration and protection jurisdiction, the Court of Appeal in Rauf v SSHD [2019] EWCA Civ 1276 reached a similar conclusion about what might be termed a hard-edged matter of interpretation of the relevant part of the Immigration Rules. In a matter which related to the period in which an individual could seek to find a fresh educational institution to pursue his studies, Sir Ernest Ryder, Senior President, did not consider the court to be bound by a concession for the following reason, at [29]:
[29] Putting to one side any more sophisticated examination of the law, Mr Turner could not have got past first post in any complaint that a concession which was simply an erroneous reading of the Immigration Rules which is mandatory and a proper reflection of the legislation has any prospect of not being withdrawn in the circumstance where there was no prejudice. There was no prejudice on the facts of this case because, on his own case, the best Mr Rauf could have achieved was 60 days grace and he had already had 7 months of the same.
51. A point to similar effect was made by Richards LJ in SU (Pakistan) v SSHD [2017] 4 WLR 175, an appeal which involved a challenge to a deportation decision. At [65], he said this:
[65] It was the UT itself that raised the effect of paragraph 391 with the Secretary of State’s representative. Its decision at para 17 records that the representative conceded, in the light of paragraph 391, that he could not argue that continuation of the deportation order was the proper course, with the result (as it appeared to the UT) that the appeal against the refusal to revoke the deportation order should succeed under the Rules. A concession apparently made on an inapplicable paragraph raised for the first time by the tribunal itself cannot restrict the right to appeal on grounds that the relevant provisions and principles had been ignored or misapplied, […].
52. A common thread can be discerned from a number of authorities in the immigration and protection jurisdiction where the Secretary of State has succeeded in departing from a concession which went to an objective assessment of risk. Good reasons to permit a withdrawal of a concession were found to exist in AM (Iran), Davoodipanah and NR (Jamaica). In all of these proceedings, concessions had been made in relation to the question of objective risk on return, some of which were in tension with binding country guidance on this important issue. The position was expressed in the following way at [18] of NR (Jamaica):
[18] In my view the Tribunal was clearly entitled to permit the withdrawal of the concession. In the light of the objective evidence which existed at the time of the first hearing, it is questionable whether the concession should have been made in the first place. The first Tribunal plainly had doubts about its appropriateness in the light of the cases. The present Tribunal was entitled to consider that it was in the interests of justice for it to assess the nature of any risk to the appellant in Jamaica.
53. In addition to the high-level principles discussed above, a party seeking to withdraw a concession bears the burden of establishing that there is a good reason to allow them to do so and the applying party is expected to act in a procedurally fair way. At [44] of the judgment in AM (Iran), Simon LJ made these observations about the importance of a fair process:
[44] In my view the Secretary of State’s application to withdraw the concession made before the UT cannot easily rely on principles of justice and fairness, particularly when it is sought to do so in a belated and informal way. One would expect those who seek to withdraw a concession to explain both promptly and frankly why the concession was made, why it was mistaken and why it is now just and fair that they be allowed to withdraw it. […]
54. Similar points were made as long ago as the decision in Carcabuk where the tribunal stressed the importance of any concessions being expressed in the clearest of terms ([12(1)]) and the need for any application to withdraw a concession to be made in good time to allow for any consequential steps to be taken ([12(3) & (7)]):
[12(3)] If the HOPO wishes to withdraw any concession made: in a refusal letter or explanatory statement, he must inform the appellant or his advisory as soon as possible and it will be for the adjudicator to decide if an application for an adjournment to enable the new case to be met is made, whether to grant it. If he does not, the concession will stand.
[…]
[12(7)] If a concession made before an adjudicator is to be withdrawn before the Tribunal, the Home Office must notify the appellant in good time. Adjournments will not be granted to allow for such withdrawals without good reason.
As to the latter point, much the same was said at [13] of CD (Jamaica).


Factors to be considered when an application is made to withdraw a concession
55. Having considered the leading authorities in this field, we are satisfied that the following (non-exhaustive) matters are to be considered when an application is made to withdraw a concession:
I. The touchstone for considering whether a party should be permitted to withdraw a concession remains the existence of good reasons. This is inseparable from the overall interests of justice and fairness.
II. The assessment of whether there are good reasons must now be seen through the prism of the recent procedural sea change in this jurisdiction in relation to issues-based reasoning. Tribunal judges depend on, and can legitimately expect, the parties (particularly where a specialist advocate appears on their behalf) to have a firm understanding of their respective factual and legal cases. Consistent with the Senior President of Tribunal’s Practice Direction, that expectation only hardens where a concession is made at a substantive hearing where a professional advocate can be presumed to have fully digested the evidence and to have a working knowledge of the applicable legal principles. A judge may enquire as to the basis on which a concession has been made, but is under no duty to investigate the settled position of a party.
III. It will generally be more difficult for a party to establish good reason to withdraw a concession which was founded on an evaluative assessment of facts or evidence, for example, a concession that an appellant is a broadly credible witness. An exception to this general approach may be where the concession relates to an objective assessment of risk of persecution or serious harm on return to the country of origin.
IV. An application to withdraw a concession may be more readily found to encompass good reasons if the concession has resulted in a decision which is demonstrably wrong in law. An example may be where a concession has resulted in a manifestly incorrect interpretation of the relevant Immigration Rules.
V. In the assessment of whether good reasons exist, prejudice to the party who benefitted from the concession is always to be considered. Prejudice will generally harden over time and particularly if an appeal has been wholly decided on the strength of a concession. A concession which effectively disposes of an appeal is an important factor weighing against the existence of good reasons. The withdrawal of such a wholesale concession will often involve significant prejudice to the affected party and the wider interests of justice because it necessarily undermines the principle of finality and legal certainty in final decisions of the tribunal. In adversarial proceedings, the considered position of a party not to contest an appeal weighs heavily. Where there is no prejudice, justice may require a concession to be withdrawn if it should never have been made (Davoodipanah) but bad faith is likely to prove fatal to any application (NR (Jamaica)).
VI. The party seeking to withdraw a concession is under a procedural duty to clearly and expeditiously apply for the tribunal’s permission to do so and must clearly set out their claimed good reasons which will necessarily involve a clear articulation of why the concession was made (supported by evidence if not agreed between the parties), why the concession was wrong and the extent of any prejudice.
VII. If it is decided at a substantive hearing that good reasons exist to permit the withdrawal of a concession, consideration must be given to whether it remains fair to proceed to hear the appeal on the appointed date. In assessing the fairness of proceeding, regard must be had to whether the other party has had sufficient opportunity to meet the case against them as it stands upon the withdrawal of the concession.
VIII. Although not an issue arising in this case, in deciding whether a decision involves a material error of law, the Upper Tribunal will not lightly interfere with a decision of the First-tier Tribunal not to permit, or to permit, the withdrawal of a concession. The overall public interest and the implications of a concession being allowed to stand may be relevant to whether a good reason exists (CD (Jamaica))
Application of the Law to the Facts
56. When we consider the legal principles discussed above, we are left in no doubt that there are not good reasons to permit the respondent to withdraw the concession made at the hearing which resulted in the appeal being summarily allowed. The developments which preceded the hearing were relevant to the assessment of whether the compulsion test was met. This was the central analytical exercise which fell to be undertaken. The only reasonable inference to be drawn from the events which unfolded at the hearing was that a view was taken by the Home Office Presenting Officer of the intensely fact-specific and nuanced evaluative assessment of the compulsion test once possessed of further information which necessarily informed whether the EU National child would be compelled to leave the UK with his primary carer. This cannot be regarded as a hasty or ill-informed decision. It was taken after multiple case management reviews where the legal principles were fully ventilated and came after discussion on the day with a Senior Caseworker.
57. There was nothing to support the broad submissions made in the context of the error of law proceedings that the concession was founded on a misinterpretation of the applicable Immigration Rules. The procedural obligations on a party seeking to withdraw a concession are such that we are bound to observe that there has been no attempt to provide evidence as to what underpinned the concession. It would be an inferential leap too far to conclude that the concession flowed from a misunderstanding of the Immigration Rules and the applicable legal principles. Mr Tan adjusted the respondent’s position on what had previously been set out in the grounds to be a hard-edged error of law at the heart of the concession. Instead, Mr Tan recognised that the previous grants of leave to the appellant did not function, without more, to exclude her from the legal status she sought. Instead, these grants were merely one facet of a multi-faceted factual analysis going to the broader compulsion test analysis. This was not a case where the law demanded only one answer. In short, the concession was one of fact, rather than one of law (let alone an incorrect concession as to the law). The post-specified date developments of the serious criminal allegation against AJ illuminated whether the child would be compelled to leave if the appellant had been required to do so. The circumstances at the substantive hearing tend to indicate that a dynamic view was taken of the overall evidential landscape.
58. We are satisfied that there would be significant prejudice to the appellant if the respondent were permitted to withdraw the concession and, consequently, to set aside the decision to allow the appeal. This was a concession which effectively disposed of the entire appeal following a clear position adopted by a party to these adversarial proceedings at a substantive hearing. The concession related to a factual evaluation, not a hard-edged point of law. There is no wider public interest in permitting the respondent to resile from the clear and settled position they adopted at the critical juncture of the substantive hearing of the appeal.
59. We are satisfied that it would be wholly wrong to permit the respondent to resile from the concession which was made at the substantive hearing, and which effectively brought the proceedings to an end. It inexorably follows that the decision of the First-tier Tribunal did not involve an error of law.
Unreasonably incurred costs
60. Mr Holmes invited us to consider awarding costs against the Secretary of State on the basis that the conduct of the proceedings has been unreasonable in seeking to resurrect a case they had expressly decided not to contest. In statutory appeals in this jurisdiction, the usual approach is that costs are not awarded upon the conclusion of proceedings. The residual power to award costs based on unreasonable conduct of proceedings is a measure of last resort. We are not satisfied that such an order would be appropriate. The Secretary of State was granted permission to appeal on the strength of an arguable case relating to an important point of principle. While we have rejected the substance of their arguments in our final analysis, the proceedings have provided an opportunity to give detailed consideration to substantive and procedural issues of some importance. To adopt the suggested approach of making such a costs order against the party who has brought the appeal might have unintended consequences of deterring parties pursuing arguable grounds of appeal if it were thought that an order for costs might be the outcome if unsuccessful. In all the circumstances, we are satisfied that this is not one of those rare cases where such a costs order is merited. We make no order for costs.
Notice of Decision
We are satisfied that the decision of the First-tier Tribunal did not involve an error of law. The decision therefore stands undisturbed.


P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber


30 July 2025